In re L.G.
Filed 7/29/13 In re L.G. CA2/8
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re L.G. et al., Persons
Coming Under the Juvenile Court Law.
B244194
(Los Angeles
County
Sup. Ct.
No. CK92174)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.G.,
Defendant and Appellant.
Appeal
from orders of the Superior Court
of
County. Marilyn
Mordetzky, Juvenile Court Referee.
Affirmed.
Nicole
Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel,
and Jessica S.
Mitchell, Senior
Associate County
Counsel, for Plaintiff and Respondent.
* *
* * * *
Appellant S.G. (father) appeals from
the juvenile court’s jurisdiction and disposition orders adjudging father’s
three minor children with C.B. (mother) to be dependents of the court and
removing them from parental custody.
Father challenges only one of the jurisdictional findings, namely the
allegation pursuant to Welfare and Institutions Code section 300, subdivision
(b), regarding storage of his medical marihuana.
evidence supporting the determination he improperly stored his medical
marijuana in a manner accessible to the children. Father also challenges that portion of the
participate in random drug testing.
Father’s
arguments are unavailing. Father’s
jurisdictional challenge is nonjusticiable because the court declared the three
children dependents of the court based on multiple findings concerning both
mother’s and father’s conduct, such that jurisdiction over the children would
remain proper even without the challenged allegations. Further, we find no exceptional circumstances
warrant our discretionary review. Father
forfeited his challenge to the dispositional order by expressly consenting to
participate in drug testing. We
therefore affirm.
In
April 2012, the Los Angeles County
Department of Children and Family Services received a referral on the Child
Protection Hotline that three minor children, L.G., M.G., and U.G. (the
children), were at risk of harm in mother’s home because mother regularly
suffers from epileptic seizures, was abusing methamphetamine, and was allowing
her then-boyfriend, who was a reported drug dealer and had threatened to kill
mother in front of the children, to live in the home.
A
social worker from the Department visited mother’s home on April 11, 2012.
On arrival, the social worker noted mother appeared to be in pain and
walked very slowly. Mother later
explained she had hurt her back the previous Saturday during an argument with
father in which he pushed her against the bathroom vanity.
The social worker
inspected the home and interviewed mother, as well as a female friend who was
visiting at the time, and “Sean N.,†mother’s boyfriend. The social worker also spoke to L.G. and
U.G., with mother’s permission.
According to
mother, she and father had “broken up,†and he was not living in the home with
them, but was living at his mother’s home.
Mother informed the social worker that, pursuant to a family law order,
the children stayed with father on certain weekends each month at the paternal
grandmother’s home.
The next day, the
social worker contacted father and visited the home of the paternal
grandmother. The home was inspected and
father and the paternal grandmother were interviewed. M.G. was with father at the time because
mother said he had “flipped out†and would not go to school. With father’s permission, the social worker
interviewed M.G. Father explained he
uses medical marijuana and agreed to take a drug test. The social worker requested a copy of his
medical marijuana card.
After
the initial investigation, the social worker learned that mother’s boyfriend,
Sean N., was no longer living, or welcome, in the home and, according to mother,
was in jail. The social worker also
noted there had been previous referrals to the Department regarding the
children for physical and emotional abuse, and for general neglect, all of
which were resolved as either inconclusive or unfounded.
At
the end of April, mother reported to the social worker she was trying to work
things out with father. The family
agreed to meet at the Department’s Lancaster
office to discuss options for the children to remain in parental custody while
the parents received services. The
meeting ended with mother and father each blaming the other for the problems
and refusing to compromise on a disposition in the best interests of the
children. The children were detained and
placed together in a foster home.
Father
and mother, who have been together on and off since mother was 15, have a
tumultuous history. They regularly have
heated verbal arguments, some of which lead to physical altercations. During one such argument in 1997, father
pushed mother, causing her to fall and hit her head, requiring 27 stitches near
her eyebrow and leaving a permanent scar.
Father concedes he went to prison for two years as a result of this
incident.
In June 2011,
father was again arrested following another fight with mother in which father
hit mother and wrapped a telephone cord around her neck, trying to choke
her. Mother escaped out a window with
L.G. and U.G. Father was arrested and
mother obtained a restraining order against him. Father was released from jail in December
2011 after mother refused to testify against him, and they once again attempted
to reconcile.
As
for the April 2012 incident in which mother injured her back, father denied
pushing her into the bathroom vanity. He
claimed he was trying to persuade mother to go to a drug rehab program, and
when he tried to hug her, she pushed away from him and fell against the
bathroom countertop. However, mother
said they were having an argument about visitation and father grabbed her,
causing her to fall back against the vanity, but he “acted like†he was just
trying to give her hug when he thought the children saw what happened.
The children
reported witnessing many of these domestic
violence incidents. L.G., the eldest
daughter, reported that mother and father argued, that she had seen both
parents hit each other, and mother often threw things at father. M.G. and U.G. both said their parents argued
“a lot.†M.G. noted mother regularly
called father bad names. U.G. recalled seeing
father and mother pushing each other and yelling, and said that one time father
was sitting on mother and L.G. had to tell him to stop because he was “chokingâ€
mother.
Both
parents have criminal records. Mother’s
record includes convictions for driving under the influence and burglary. Mother was sentenced to two years in prison
on the burglary charge, during which time father took care of the
children. Despite initially denying any
drug problem, mother acknowledged her need for treatment for her continued
abuse of illegal drugs, specifically methamphetamine. In April 2012, mother tested positive for
methamphetamine. In June 2012, mother
twice tested positive for methamphetamine.
Father’s
criminal history dates back to 1993 and includes numerous arrests for robbery
and burglary. Father was convicted in
1993 for taking a vehicle without the owner’s consent. In 1997, he was convicted of robbery and
infliction of corporal injury on a cohabitant for the incident resulting in
mother’s head injury. In 2005, father
was convicted of possession of a controlled substance, and participated in a
Proposition 36 drug treatment plan with probation. In 2006, father was convicted of petty
theft. And, in 2011, father was arrested
for violating the domestic violence restraining order in favor of mother.
At the
jurisdiction hearing, both mother and father testified. Mother testified to the history of arguments
and the numerous incidents of domestic violence. Mother admitted she regularly used methamphetamine,
including during April 2012 at the time of the referral to the Department. According to mother, father smoked marijuana
at the house, but not in front of the children, and father had smoked “shermâ€
home as recently as April 2012.
Father admitted he
and mother argue, and conceded his conviction for domestic violence in
1997. However, he testified charges of
domestic violence against him by mother in 2003 were “dropped.†Father denied assaulting mother during the
2003 and 2011 incidents.
Father
denied using any illegal drugs, explaining he has had a medical marijuana
prescription card for three years which he obtained for pain management arising
from injuries suffered in a car accident.
Father prefers to use marijuana edibles, like brownies, candy and
lollipops. Depending on his level of
pain, he uses the edibles anywhere from two times a week up to two times per
day. Father testified his marijuana use
does not interfere with his ability to protect and supervise his children when
they are in his care.
Father
admitted he has eaten his marijuana edibles in front of the children. He explained if he was eating a marijuana
sucker, and the children asked about it, he would tell the children they could
not have one of his, but he would try to have something else, some other candy,
for them to eat instead. He testified he
ordinarily kept his marijuana in the trunk of his car or on a shelf in his
closet, but he recently obtained a lock box at the request of the social worker
to prevent the children from having access to the drugs.
Patricia Woods, a
Department social worker, testified and expressed the Department’s concern over
father’s storage of his medical marijuana and his use of the edibles in the
children’s presence. Ms. Woods explained
father had to be told to keep the marijuana in a locked container for the
safety of the children.
After
argument from counsel, the court took the matter under submission. At the return hearing on July 17, 2012, the
court sustained the petition, as amended, pursuant to section 300, subdivision
(a) (count 1), and subdivision (b) (counts 1, 2, 3, 5 & 8). The remaining allegations were dismissed. The court ordered separate monitored
visitation for both parents, granting the Department discretion to liberalize
the parents’ visitation schedule to include unmonitored and overnight
visits. This appeal followed.
1.
Father’s
Challenge to the Jurisdictional Finding Pursuant to Section 300, Subdivision
(b) Is Not Justiciable
Father contends
there is no substantial evidence
supporting the allegation that the children were at substantial risk of harm
because he improperly stored his medical marijuana. (§ 300, subd. (b).) Father acknowledges the court can take
jurisdiction over a minor based on the conduct of either parent, and that
reversal of the section 300, subdivision (b) finding on count 2 would not
divest the juvenile court of jurisdiction.
However, father contends this court should consider his appeal on the
merits because the jurisdictional finding regarding the storage of his
marijuana could impact future proceedings.
We are not persuaded.
The
focus of dependency proceedings is on the protection of minor children. (In re
I.A. (2011) 201 Cal.App.4th 1484, 1491.)
To acquire jurisdiction over a child, a juvenile court need only “find
that one parent’s conduct has created circumstances triggering section 300.†(Ibid.) “[I]t is commonly said that a jurisdictional
finding involving one parent is ‘“good against both. More accurately, the minor is a dependent if
the actions of either parent bring [him] within one of the statutory
definitions of a dependent.â€â€™
[Citation.]†(
to address the evidentiary support for any remaining jurisdictional findings
once a single finding has been found to be supported by the evidence.†(Ibid.)
Here,
father did not contest the multiple jurisdictional findings as to mother, nor
did he challenge the other jurisdictional findings concerning his own behavior
pursuant to section 300, subdivision (a) (count 1‑‑domestic
violence) and subdivision (b) (count 3‑‑domestic violence), or
pursuant to section 300, subdivision (b) (count 5‑‑criminal
history). Because these other
jurisdictional bases remain in effect and unchallenged, father’s appeal of the
one jurisdictional finding pursuant to section 300, subdivision (b) is
nonjusticiable. (In re I.A., supra, 201
Cal.App.4th at p. 1490 [“An important requirement for justiciability is the
availability of ‘effective’ relief—that is, the prospect of a remedy that can
have a practical, tangible impact on the parties’ conduct or legal status.â€].)
Furthermore,
father has failed to persuade us there is a valid reason to exercise our
discretion to review his contention.
Father has not identified any likely prejudice he will suffer in future
proceedings because of the jurisdictional finding regarding the improper
storage of his medical marijuana. And,
in any event, the record reflects substantial evidence of the jurisdictional
bases found true as against both mother and father. As for the finding regarding father’s
improper storage of marijuana in the home, the court reasonably could infer
from the record there was a substantial risk of harm to the children arising
from access to marijuana in edible forms (brownies, candy) likely to be seen as
particularly tempting to children of their age.
(See In re Rocco M. (1991) 1
Cal.App.4th 814, 825-826 [juvenile court entitled to infer that child 11 years
of age is subjected to substantial risk of harm when placed in a home
environment allowing access to drugs].)
Father
Forfeited any Challenge to the Order Requiring Him to Participate in Drug Testing
It
is a fundamental principle of appellate jurisprudence that issues not timely
preserved below by way of objection will be deemed forfeited. (People
v. Saunders (1993) 5 Cal.4th 580, 589-590.)
The purpose behind this rule is “to encourage parties to bring errors to
the attention of the trial court, so that they may be corrected.†(In re
S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds
as stated in In re S.J. (2008) 167
Cal.App.4th 953, 962.) The forfeiture
rule applies in dependency matters. (
494, 502.)
Notwithstanding
the foregoing, an appellate court does have the right to excuse a forfeiture in
appropriate circumstances. This
discretion “should be exercised rarely
and only in cases presenting an important legal issue. [Citations.]
Although an appellate court’s discretion to consider forfeited claims
extends to dependency cases [citations], the discretion must be
matters. ‘Dependency proceedings in the
juvenile court are special proceedings with their own set of rules, governed,
in general, by the Welfare and Institutions Code.’ [Citation.]
Because these proceedings involve the well-being of children,
considerations such as permanency and stability are of paramount
importance. (§ 366.26.)†(In re
S.B., supra, 32 Cal.4th at p.
1293, italics added.)
Here,
not only did father not object to the
random drug testing ordered by the court, but father expressly agreed to such testing.
Just before the court made its oral pronouncement on disposition,
counsel for father reiterated a general objection to the removal order, but
then raised only an objection to the proposed disposition plan requiring
monitored visitation. Counsel then
stated, “my client is in counseling.
He’s willing to drug test . . . .â€
The court ordered father to attend a Department-approved program of
random and on-demand drug testing to verify that his marijuana usage is limited
to his medical prescription for pain management. Father’s counsel then asked for
transportation assistance, which the court granted. The court asked if there was anything else
counsel wished to address as to father.
Counsel said, “I don’t believe so at this time.â€
On
this record, father cannot now be heard to claim on appeal the juvenile court
abused its discretion in ordering him to participate in drug testing. Moreover, the record reflects a sound basis
for the court’s concern given father’s prior history of drug use, his prior
conviction for possession of a controlled substance, as well as mother’s
testimony that father recently used illegal drugs (sherm) at the home.
DISPOSITION
The
jurisdiction and disposition orders are affirmed.
GRIMES,
J.
We concur:
RUBIN,
Acting P. J.
FLIER,
J.
name="_ftn1" title="">[1] All
further undesignated section references are to the Welfare and Institutions
Code.
name="_ftn2" title="">[2] The
parties agree the term “sherm†refers to marijuana dipped in PCP.
